Interim Decision #2995

Interim Decision #2995

MATTER OF GARCIA

In Deportation Proceedings

A-36664307

Deckled by Board October 9, 1985

(1) Although Article 42.12, section ad of the Texas Code of Criminal Procedure is not

a first offender statute, a person sentenced to probation under that statute has

not been convicted for immigration .purposes because adjudication of guilt has

been withheld by the trial court.

(2) Where thpra has been no affirmative showing that the trial judge lacked authority under Texas law to order a new trial and resentence the respondent, the

Board of Immigration Appeals will not question the judge's jurisdiction to so act.

CHARGE:

Order: Act of 1952—Sec. 241(aX11)

na violation

§ 1251(a)(11)]—Convicted of marihua-

ON BEHALF OF RESPONDENT:

Frank S. Triana, Esquire

664 Broadway, Suite G

Chula Vista, California 92010

ON BEHALF OF SERVICE:

Penny M. Smith

General Attorney

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In a decision dated April 30, 1984, 1 the immigration judge found

the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1982), as an alien

convicted of possession of marihuana and ordered him deported

from the United States. The immigration judge has certified his decision to the Board for review and the respondent has appealed.

The respondent's appeal will be sustained and the decision of the

immigration judge will be reversed. The proceedings against the respondent will be terminated.

'The record reflects that the immigration judge initially made' ed a decision on

March 26, 1984, which he subsequently amended on April 30, 1984. Since the respondent's appeal was untimely filed, it was not inappropriate for the immigration

judge to reopen the proceedings on his own motion to amend his decision.

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Interim Decision #2995

The respondent is a 28-year-old native and citizen of Mexico who

was admitted to the United States as a lawful permanent resident

on May 12, 1980. The record reflects that he was convicted on December 13, 1982, in the District Court of Brewster County, Texas,

83rd Judicial District, of possession of marihuana, for which he was

fined $1,000 and sentenced to 10 years of confinement. The imposition of the respondent's prison sentence was suspended, and he was

placed on probation for 10 years. He subsequently filed a motion

for a new trial, alleging that the trial court had committed a material error in entering a judgment that was contrary to law and evidence. The motion was granted on October 24, 1983, on which date

a new order was issued- Pursuant to that order, the court deferred

adjudication of guilt but again placed the respondent on probation

for 10 years and fined him $1,000.

Following issuance of an Order to Show Cause and Notice of

Hearing (Form I-221), the respondent requested that his deportation proceedings be terminated on the ground that there was no

conviction to support a finding of deportability. He claimed that he

was not convicted because he had been placed on probation under

Article 42.12, section 3d of the Texas Code of Criminal Procedure.

That statute provides for deferral of adjudication of guilt during

probation and dismissal of the proceedings without conviction upon

expiration of the probationary period. 2

2 Article 42.12, section 3d of the Texas Code of Criminal Procedure of 1965 Annotated provides as follows:

(a)Except as provided by Subsection (d) of this section, when hi its opinion the

hest interest of society and the defendant will be served, the court may. after re-

ceiving a plea of guilty or plea of nob contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without

entering an adjudication of guilt, and place the defendant on probation for a

period as the court may pre.scribe, not to exceed 10 years. The court may impose a

fine applicable to the offense and require any reasonable terms and conditions of

probation, including any of the conditions enumerated in Sections 6 and 6a of this

Article. However, upon written motion of the defendant requesting final adjudication filed within 20 days after entering such plea and the deferment of adjudication, the court shall proceed to final adjudication as in all other cases.

(b) On violation of a condition of probation imposed under Subsection (a) of this

section, the defendant may be arrested and detained as provided in Section 8 of

this Article. The defendant is entitled to a hearing limited to the determination

by the court of whether it proceeds with an adjudication of guilt on the original

charge. No appeal may be taken from this determination. After an adjudication of

guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudica.

tion of guilt had not been deferred.

(c) On expiration of a probationary period imposed under Subsection (a) of this

section, if the court has not proceeded to adjudication of guilt, the court shall disContinued

Interim Decision #2995

The immigration judge rejected the respondent's contention that

a conviction did not exist for immigration purposes. He first noted

that the respondent had not argued that Article 42.12, section 3d of

the Texas Code of Criminal Procedure was the state equivalent of

the Federal Youth Corrections Act or the federal first offender statute. The immigration judge further commented on the fact that,

following the order for a new trial, the trial judge again found that

the evidence substantiated the respondent's guilt, placed him on

probation for 10 years, and ordered him to pay a fine of $1,000. The

immigration judge concluded that the action of the trial court did

not constitute an expunction or vacation of the respondent's conviction since the same penalties had been imposed and the respondent

remained subject to arrest and detention upon violation of probation. He therefore determined that the respondent had been convicted of illicit possession of marihuana and that he was consequently deportable under section 241(a)(11) of the Act.

On appeal the respondent argues that he was deprived of a fair

hearing because the Service failed to amend the allegations of the

Order to Show Cause to reflect the state court's disposition upon

new trial. He claims that he was not given an opportunity to request additional time in which to respond to the Service's position

on the court's new order, in violation of 8 C.F.R. § 242.16(d) (1984).

The respondent further contends that the immigration judge erred

in finding him deportable as an alien convicted of a marihuana offense. He asserts that Article 42.12, section 3d of the Texas Code of

Criminal Procedure is not an expunction statute but is akin to the

Georgia statute analyzed by the Board in Matter of Seda, 17 I&N

Dec. 550 (BIA. 1980). The respondent therefore asserts that no conviction exists upon which he can be found deportable.

In Matter of Seda we examined the Georgia first offender statute

and determined that a person sentenced under a statute which provides for withholding of adjudication of guilt by the court and dis-

charge without conviction upon successful completion of probation

is not considered to be "convicted" for immigration purposes. In so

holding, we noted our long-standing position that a conviction

miss the proceedings against the defendant and discharge him. The court may dismiss the proceedings and discharge the defendant prior to the expiration of the

term of probation if in its opinion the best interest of society and the defendant

will be served. A dicunisal and discharge under this section may not be deemed a

conviction for the purposes of disqualifications or disabilities imposed by law for

conviction of an offense except that upon conviction of a subsequent offense, the

fact that the defendant had previously received probation shall be admissible

before the court or jury to be considered on the issue of penalty.

Tex. Code CT-1m. Proc. Ann. art. 42.12, sec. 3d (Vernon 1983).

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exists for immigration purposes when the following elements are

present: (1) There has been a judicial finding of guilt; (2) the court

takes action which removes the case from the category of those

which are (actually or in theory) pending for consideration by the

court the court orders the defendant fined or incarcerated, or the

court suspends sentence; (3) the action of the court is considered a

conviction by the state for at least some purpose. See also Matter of

Robinson, 16 I&N Dec. 762 (BIA. 1979); Matter of Varagianis, 16

I&N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 I&N Dec. 401

(BIA 1963); Matter of L-R-, 8 I&N Dec. 269 (MA 1959).

Although Seda involved a first offender statute, we find the rationale of our holding in that case relevant to the statute at issue

despite its applicability to all criminal offenders. Prior to the decision in Seda, our inquiry into state laws was limited to determining whether the statute in question was the state counterpart to

the federal first offender statute. See Matter of Kaneda, 16 I&N

Dec. 677 BIA 1979); Matter of Haddad, 16 I&N Dec. 253 (BIA 1977);

Matter of Werk, 16 I&N Dec. 234 (BlA 1977). Our primary focus was

on the fact that, in pigging the federal first offender statute, Congress had expressed an intention to eliminate the stigma of a conviction on first offenders in order to gi-v-e them a second opportunity to live as law-abiding members of society. Applying this policy

consideration to an immigration context, we determined that first

offenders should also be exempt from deportation despite their conviction for a narcotics offense. 3

Upon further examination in Seda of state and federal first offender statutes, we concluded that an o ffender sentenced under

those statutes was never in fact convicted, so no expunction was

necessary. Our determination was based on analysis of the terms of

the statutes and our established standards for conviction. The decision was one of law, independent of the policy considerations previously deemed critical in determining whether elimination of a nar—

3 We first concluded in Matter of Werk, supra, that an alien sentenced under the

federal first offender statute should not be subject to deportation for a narcotics violation. Our decision was based on a Service memorandum in which the first offender statute was equated with the Federal Youth Corrections Act. We had previously

determined that expunction of a narcotics conviction pursuant to that act or an

equivalent state statute should eliminate the conviction as a basis for deportation.

See Matter of Andrade, 14 I&N Dec. 651 (BIA 1974); Matter of Zingis, 14 I&N Dec.

621 (BIA 1974). In reaching that conclusion, we acknowledged the congressional

policy to deport narcotics offenders but found that the desire expressed by Congrece

to rehabilitate youthful offenders was equal in importance and would be thwarted

by deporting alien youth offenders. Matter of Zingis, supra; see also Matter of A-F-,

8 I&N Doe. 429 (BIA, A.G. 1959).

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■

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codes conviction for deportation purposes was appropriate. 4 Consequently, we conclude that the Seda rationale is not limited to first

offender statutes. We shall therefore examine the Texas law at

issue in the context of that case.

As in the Georgia first offender statute, Article 42.12, section 3d

of the Texas Code of Criminal Procedure provides for withholding

of adjudication of guilt and deferral of the criminal proceedings

during a period of probation. According to the statute, the court

dismisses the proceedings and discharges the defendant at the expiration of his probationary period. The statute further specifies that

such dismissal and discharge may not be deemed a conviction for

the purpose of disabilities imposed by law for conviction of an of-

fense.

Interpreting these provisions, the Court of Criminal Appeals of

Texas has determined that a trial judge's action in deferring the

proceedings without entering an adjudication of guilt does not constitute a conviction under Texas law because an adjudication of

guilt is essential to a conviction. Ex _carte Shillings, 641 S.W.2d 538

(Tex. Crim. App. 1982); McNew v. State, 608 S.W.2d 166 (Tex. Crim.

App. 1978). This assessment comports with our own standards for

conviction which require a judicial finding of guilt. Inasmuch as

Texas law clearly precludes a conviction where there is no adjudication of guilt and our decisions are in accord, we find that an

alien sentenced to probation under Article 42.12, section 3d of the

Texas Code of Criminal Procedure has not been convicted for immigration purposes.

Finally, we note the apparent concern of the immigration judge

regarding the propriety of the trial court's grant of a new trial

which resulted in the imposition of the same penalties. Inasmuch

as there has been no affirmative showing that the trial judge

lacked authority under Texas law to order a new trial and place

the respondent on probation under Article 42.12, section 3d, we

shall not question his jurisdiction to so act. See Matter of Kaneda,

supra; Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970); Matter of

O'Sullivan, 10 I&N Dec. 320 (BIA 1963).

Although we need not fully address the respondent's other argument on appeal in view of our finding that he was not convicted,

4 In subsequent cases where we have found that a narcotics conviction was not

eliminated for immigration purposes, we also noted the fact that the statute in question did not limit its applicability to first offenders or youthful offenders. See Matter

of Carrillo, 19 I&N Doe. 77 (81A 1984); Manor of Poroinor, 18 I&N Dec. VA (BIA

1983); Matter of Goishan, 18 I&N Dec. 92 (BIA 1981). We do not find that factor to

be controlling here, however, because each of the statutes examined in those cases

clearly involved expunction procedures.

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we find it to be without merit. Accordingly, the respondent's appeal

will be sustained and the decision of the immigration judge will be

reversed.

ORDER: The appeal is sustained and the decision of the immigration judge is reversed.

FURTHER ORDER: These deportation proceedings are terminated.